In the everchanging landscape of COVID-19 and the workplace, our team has taken every opportunity to educate and inform our clients and our community about the options available to them. Whether it involves best practices surrounding health and safety requirements or how to obtain tax credits, our HR team answers the most frequently asked questions surrounding the Families First Coronavirus Response Act (FFCRA) and what it means for your business and employees.

What is the FFCRA?

• The Families First Coronavirus Response Act (FFCRA or Act) requires certain employers to provide their employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. The Department of Labor’s Wage and Hour Division administers and enforces the new law’s paid leave requirements. These provisions will apply from the effective date through December 31, 2020.

Who is covered/eligible?

• The paid sick leave and expanded family and medical leave provisions of the FFCRA apply to certain public employers, and private employers with fewer than 500 employees. Most employees of the federal government are covered by Title II of the Family and Medical Leave Act, which was not amended by this Act, and are therefore not covered by the expanded family and medical leave provisions of the FFCRA. However, federal employees covered by Title II of the Family and Medical Leave Act are covered by the paid sick leave provision.
• Small businesses with fewer than 50 employees may qualify for an exemption from the requirement to provide leave due to school closings or childcare unavailability if the leave requirements would jeopardize the viability of the business as a going concern.

How is it different in 2021?

The paid-leave requirements of the FFCRA expired on December 31, 2020. Employers no longer have an obligation to provide paid sick or emergency Family and Medical Leave Act (FMLA) leave to employees for absences related to the coronavirus. However, under the new stimulus bill, the Consolidated Appropriations Act (CAA), if employers choose to continue providing leave that meets the former FFCRA requirements voluntarily, the employer tax credits for providing such leave have been extended until March 31, 2021.

How and when do employers apply for the tax credit?

• An employer that continues to provide paid leave as previously required under the FFCRA can claim a tax credit for qualifying leave provided from January 1, 2021, through March 31, 2021. The employer will take a dollar-for-dollar tax credit by retaining the amount of payroll taxes equal to the amount of qualifying sick and childcare leave that it paid (up to statutory maximums), rather than deposit them with the IRS.
• Employers pay the paid leave up front and take a dollar-for-dollar tax credit by retaining the amount of payroll taxes equal to the amount of qualifying sick and childcare leave that it paid, plus allocable qualified health plan expenses and the employer’s share of Medicare tax, rather than deposit them with the IRS. This is effective as of April 1, 2020.
• The payroll taxes that are available for retention include withheld federal income taxes, the employee share of Social Security and Medicare taxes, and the employer share of Social Security and Medicare taxes with respect to all employees.
• Equivalent childcare leave and sick leave credit amounts are available to self-employed individuals under similar circumstances. These credits will be claimed on their income tax return and will reduce estimated tax payments. More guidance on this is expected from the IRS.

Would an employee who is afraid of coming to work and contracting COVID-19 be eligible for paid sick leave?

• No, an employee’s concern for contracting the virus is not included within the six allowable reasons for leave. The employee, however, may be eligible for leave under another employer policy (such as a leave of absence, accrued vacation, etc.) as per the requirements of that policy.
• If an employee’s fear, however, is related to a serious health condition, he or she may be eligible for traditional FMLA leave. Normal notice and certification procedures would be followed for that determination.

If we offer telework as an option and employees want to take the expanded FMLA leave instead, can they do this?

If an employee is unable to perform those teleworking tasks or work the required teleworking hours because he or she needs to care for a child whose school or place of care is closed, or a childcare provider is unavailable, because of COVID-19 related reasons, then he or she is entitled to take expanded family and medical leave. Of course, if the employee is able to telework while caring for his or her child, paid sick leave and expanded family and medical leave is not available.

If an employee takes FMLA leave for his or her own serious health condition related to COVID-19, is the employee eligible for this new category of paid FMLA leave?

• No. The new paid FMLA leave entitlement is for one reason only—to care for a child whose school or place of care is closed or whose caregiver is unavailable due to COVID-19-related issues.
• Such an employee would, however, likely be eligible for up to 10 days of emergency paid sick leave if:
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  • The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.

Are part-time employees included in the expanded FMLA leave and paid sick leave?

Yes, all employees are included in both leaves. To qualify for the expanded FMLA, an employee must be employed for at least 30 days. Any employee is eligible for paid sick leave regardless of length of employment. Please be aware the employee must also have a listed qualifying event in both cases.

Can we ask employees if they have received the COVID-19 vaccination?

Employers are permitted to ask employees if they have been vaccinated against COVID-19; however, caution should be taken to avoid soliciting information related to an employee’s medical condition. A simple yes or no response from employees should be sufficient, and employers should instruct employees not to provide additional information about the reason they may not have received the vaccine.

Navigating a workplace during a pandemic is no easy feat, but it’s important to understand the avenues available to business owners and how they can work to protect their employees. The saying of “we are in this together” has never had a deeper meaning than now. Let’s work together to share our knowledge and support our community.

Danielle Bearden is a dynamic HR professional, serving as the director of human resources at Lever1, planning, developing and directing the administration of all HR functions within the Lever1 Human Resources Department. She has over 15 years of experience in all areas of human resources including strategic planning, total rewards, performance management, employee wellness and safety, HR compliance and labor relations.

Michael Rehak brings over 10 years of experience to his role at compliance manager at Lever1. During the recent COVID-19 pandemic, Michael has provided support and insight into new federal legislation like the Families First Coronavirus Response Act, the CARES Act and the Paycheck Protection Program as a member of the Response Team. Michael works directly with our clients to answer questions and provide insight regarding paid sick leave, expanded FMLA leave, and PPP loan forgiveness.